IGNACIO HERRERO, ADMINISTRATOR OF THE ESTATE OF CARLOS P. HERRERO, DECEASED, APPELLANT,
v.
THE BLACK AND DECKER MANUFACTURING COMPANY, A MARYLAND CORPORATION, AND LARRY KANE, APPELLEES
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The court reversed a wrongful death dismissal based on the statute of limitations running on a Sunday, holding that when the last day of a limitation period falls on a Sunday or legal holiday, the period extends to the next business day. This case establishes that Florida's wrongful death statute should be interpreted consistently with the Florida Rules of Civil Procedure, which exclude Sundays and holidays from time computations.
The court held that where the last day of a period of limitation for commencing a wrongful death action falls on a Sunday or legal holiday, the period is extended and the action may be timely commenced on the following secular or business day.
[1] When the last day of a period of limitation for commencing an action falls on a Sunday, the period is extended and the action may be commenced on the following secular or…
[2] Rules for computing time periods exclude Saturdays, Sundays, and legal holidays as the last day, extending the period to the next business day.
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Join FLexlaw to unlock all legal intelligence“We are in accord with the general view that, if the last day of a period of limitation for commencing an action falls on a Sunday or on a legal holiday, the period is extended and the action may be commenced on the following secular or business day.”
Establishes the controlling rule for extending limitation periods when they expire on Sundays or holidays.
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Join FLexlaw to unlock all legal intelligenceCarlos P. Herrero was electrocuted and killed on November 14, 1969, while using a defective drill manufactured by Black and Decker. His administrator …
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Plaintiff-appellant is seeking review of a final judgment of dismissal of his wrongful death claim.
While at his job on November 14, 1969 Carlos P. Herrero was using a drill manufactured by defendant-appellee, Black and Decker Manufacturing Company. As a result of a defect in the drill, he was electrocuted and died on the same day. On Monday, November 15, 1971, plaintiff, administrator of the deceased’s estate, filed suit under the Survivorship and Wrongful Death Statutes. The court granted defendant’s motion to dismiss the claim on the ground that the two year statute of limitation had run on Sunday, November 14, 1971.
Appellant contends that where the last day of a two year period falls on a Sunday, a suit for wrongful death is timely filed on the next day, to-wit: Monday. We agree.
*55We are in accord with the general view that, if the last day of a period of limitation for commencing an action falls on a Sunday or on a legal holiday, the period is extended and the action may be commenced on the following secular or business day. See 86 C.J.S. Time § 14(9) (1954) and cases cited therein.
We also are guided in our decision by Stockslager v. Daly Aluminum Products, Inc., Fla.1971, 246 So.2d 97 which is analogous to the case sub judice. In Daly, the Florida Supreme Court held that where the last day on which notice of a mechanic’s lien could have been filed fell on a Sunday, the notice filed on the following day was timely.
Further, we are influenced by the language contained in RCP 1.090(a), 30 F.S.A. and FAR 3.18, 32 F.S.A. Both rules exclude Saturday, Sunday, or a legal holiday as being the last day in computing any period of time under the rules, by order of court, or by any applicable statute. Instead, the period runs until the end of a next day which is neither a Saturday, Sunday, nor a legal holiday. Although the limitation statute, F.S. § 95.11, F.S.A., is silent in this regard it makes sense that the same construction be placed upon the statute as is laid down in the rules. See Daly Aluminum Products, Inc. v. Stockslager, Fla.App.1970, 244 So.2d 528.
Appellee, in his brief, places much gravity in Lundstrom v. Lyon, Fla.1956, 86 So.2d 771 where the court was faced with the problem of determining when an action was “commenced” so as to toll the running of the statute of limitation. However, Lundstrom is distinguishable from the case suti judice in that in Lundstrom there was a direct conflict between the old Florida Common Law Rule 4 (now RCP 1.050, 30 F.S.A.) and F.S. § 95.01, F.S.A. Clearly no such conflict exists between the statute and the rules in the case at bar. We also note that F.S. § 95.01, F.S.A. was repealed, as superseded by the Florida Rules of Civil Procedure. Therefore, we are compelled to reject Lundstrom as controlling.
Accordingly, the judgment of the trial court is reversed with directions to proceed in accordance with this opinion.
We further deem it appropriate to certify this decision to the Supreme Court as one involving a question of great public interest, such question being:
Pursuant to the rule making powers given the Supreme Court under the Florida Constitution (F.S.A. Const. Art. V, § 2), is it a matter of judicial jurisdiction and therefore a question of judicial interpretation for the court to compute the time where a statute provides for a limitation period but is silent as to the method of computation if the last day of the time period falls on a Saturday, Sunday, or a legal holiday?
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Moorey v. Eytchison & Hoppes, Inc., 338 So. 2d 558 (Fla. 2d DCA 1976)…tatutes. Where the last day of a limitation period falls on a Saturday, Sunday or legal holiday the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday. Herrero v. Black and Decker Manufacturing Company, 275 So. 2d 54 (Fla.3d DCA 1973), opinion approved and certiorari discharged, 281 So. 2d 18 (Fla. 1973). Therefore, if the last day of the limitations period was Saturday, November 1, 1975, the amended complaint which first named Mobil as a defendant was timely fi…
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The Black & Decker Mfg. Co. v. Herrero, 281 So. 2d 18 (Fla. 1973)…PER CURIAM. This cause is before us to review the decision of the District Court of Appeal, Third District, reported at 275 So. 2d 54, a decision certified by the District Court as passing on a question of great public interest, recited by that Court to be, “Pursuant to the rule making powers given the Supreme Court under the Florida Constitution (F.S.A.Const. Art. V, § 2), is it…
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Ludwig v. Glover, 357 So. 2d 233 (Fla. 1st DCA 1978)…the cases above cited and in addition thereto Daly, Aluminum Products, Inc. v. Stockslager, 244 So. 2d 528 (Fla. 2d DCA 1971); Stockslager v. Daly Aluminum Products, Inc., 246 So. 2d 97 (Fla.1971); Herrero v. Black and Decker Manufacturing Company, 275 So. 2d 54 (Fla. 3rd DCA 1973); Black and Decker Manufacturing Company v. Herrero, 281 So. 2d 18 (Fla.1973); and Moorey v. Eytchison and Hoppes, Inc., 338 So. 2d 558 (Fla. 2nd DCA 1976)). The problem, however, with applying that rule to the ten month period n…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stockslager v. Daly Aluminum Prods., Inc., 246 So. 2d 97 (Fla. 1971)
- Daly Aluminum Prods., Inc. v. Stockslager, 244 So. 2d 528 (Fla. 2d DCA 1970)
- Lundstrom v. Hunter Lyon, II, 86 So. 2d 771 (Fla. 1956)